WEBVTT - How the Warhol Ruling will Impact Copyright Law 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.800 --> 0:00:14.040 With dueling opinions from two liberal justices, the Supreme Court 0:00:14.160 --> 0:00:18.639 ruled that Andy Warhol violated the copyright of photographer Lynn 0:00:18.720 --> 0:00:23.239 Goldsmith by using her work to create sixteen images of Prince. 0:00:23.840 --> 0:00:26.720 In a seven to two vote. The Justice has rejected 0:00:26.760 --> 0:00:31.040 the arguments that the late artists transformed the photograph of Prince, 0:00:31.480 --> 0:00:35.120 making it fair use under federal copyright law. In the 0:00:35.159 --> 0:00:39.480 majority opinion, Justice Sonya Sotomayor pointed to the commercial use 0:00:39.600 --> 0:00:43.479 as a key factor in determining that Warhol hadn't engaged 0:00:43.479 --> 0:00:46.839 in fair use, something that echoed her questions in the 0:00:46.960 --> 0:00:47.800 oral arguments. 0:00:48.600 --> 0:00:52.320 That's up to what was made, What use was made 0:00:52.320 --> 0:00:57.520 of Orange Prince. It was a highly commercial use. Goldsmith's 0:00:57.680 --> 0:01:01.920 also licensed her photographs to magaz means just as warholtz 0:01:02.520 --> 0:01:06.119 a state did so, how is it that your two 0:01:06.120 --> 0:01:10.760 thousand and six license and Goldsmith's photographs do not share 0:01:10.800 --> 0:01:12.360 the same commercial purpose. 0:01:12.720 --> 0:01:18.520 In dissent, Justice Elena Kagan, joined by Chief Justice John Roberts, said, quote, 0:01:18.720 --> 0:01:23.039 if Warhol doesn't get credit for transformative copying, who will? 0:01:23.760 --> 0:01:26.280 Something the Chief had expressed during the arguments. 0:01:26.760 --> 0:01:30.000 It's not just that Warhol has a different style, is it. 0:01:30.120 --> 0:01:36.280 Unlike Goldsmith's photograph, warl sends a message about the depersonalization 0:01:36.600 --> 0:01:40.399 of modern culture and celebrity status. Joining me is intellectual 0:01:40.440 --> 0:01:44.360 property litigator Terrence Ross, a partner at Caton Much and Rosenman. 0:01:44.920 --> 0:01:47.640 We've talked about this case many times, and I have 0:01:47.720 --> 0:01:50.800 to say that I was surprised by the verdict. Were 0:01:50.840 --> 0:01:51.600 you surprised? 0:01:52.080 --> 0:01:54.880 I was not surprised by the outcome. I was surprised 0:01:54.880 --> 0:01:58.560 by the seven to two vote. During oral argument, you 0:01:58.640 --> 0:02:01.400 knew exactly how the Chief Justice was going to vote. 0:02:01.480 --> 0:02:04.040 He on a couple occasions made statements in the form 0:02:04.040 --> 0:02:06.480 of the question, but they weren't questions. They were simply 0:02:06.680 --> 0:02:09.760 expressing his views. How could you possibly not think this 0:02:09.880 --> 0:02:12.720 is a fair use? And I'm paraphrasing. And after each 0:02:12.760 --> 0:02:16.280 of those instances you could hear crickets. The rest of 0:02:16.320 --> 0:02:19.000 the court was dead sign it. Several of the justices 0:02:19.040 --> 0:02:21.560 looked at their papers and shuffled their papers like they 0:02:21.600 --> 0:02:24.920 were embarrassed that their old uncle had said something. And 0:02:25.080 --> 0:02:28.320 one of the justices pointedly leaned over looked down the 0:02:28.320 --> 0:02:30.840 panel with that look on his faces, what is it 0:02:30.880 --> 0:02:33.160 that you're smoking? So you sort of got a sense 0:02:33.200 --> 0:02:35.400 that you knew exactly what the Chief Justice was going 0:02:35.440 --> 0:02:37.920 to do, and you also sort of knew that his 0:02:38.160 --> 0:02:41.400 view was not going to prevail. He had a very 0:02:41.720 --> 0:02:46.440 very deferential view, which is expressed in part Justice Kagan's dissent, 0:02:46.720 --> 0:02:49.440 essentially that if an artist says I'm doing something different, 0:02:49.639 --> 0:02:52.360 then fair use applies, which is of course nonsense. So 0:02:52.440 --> 0:02:55.200 I wasn't surprised by the outcome, but I was surprised 0:02:55.200 --> 0:02:58.040 that the majority cobbled together seven votes, which makes this 0:02:58.160 --> 0:03:01.280 opinion all the more significant because it was not a 0:03:01.320 --> 0:03:01.839 close call. 0:03:02.320 --> 0:03:05.560 So Terry for the majority, was the key factor in 0:03:05.680 --> 0:03:09.320 determining fair use, the purpose of the works, the commercial 0:03:09.480 --> 0:03:13.519 use of Warhol's image, and the fact that both were 0:03:13.639 --> 0:03:15.720 used as magazine illustrations. 0:03:15.919 --> 0:03:20.840 That is certainly what the majority decision says. If you 0:03:21.080 --> 0:03:26.240 read a little bit more closely, there's this very interesting 0:03:26.320 --> 0:03:31.280 discussion of derivative works. One of the rights that copyright 0:03:31.320 --> 0:03:35.280 gives an artist is the exclusive right to prepare derivative 0:03:35.280 --> 0:03:39.040 works based on the original work, And what Justice Somayor 0:03:39.200 --> 0:03:43.280 said was that the way that the law transformative use 0:03:43.320 --> 0:03:48.080 has evolved, it has virtually swallowed up the concept and 0:03:48.160 --> 0:03:52.000 the exclusive right to prepare derivative works. And indeed, at 0:03:52.000 --> 0:03:56.520 one point she says, we have to protect this exclusive 0:03:56.600 --> 0:04:02.800 right to prepare derivative works and prevent this transformative use 0:04:03.040 --> 0:04:07.120 test from swallowing this exclusive right to derivative works. So 0:04:07.160 --> 0:04:10.000 I think there was an element of concern about that, 0:04:10.400 --> 0:04:14.840 and that clearly comes through in several places. But the 0:04:14.880 --> 0:04:17.239 way it's expressed in the most part in the decision 0:04:17.320 --> 0:04:20.680 is through this notion of the textual words. Is there 0:04:20.680 --> 0:04:23.200 a different purpose or character to the secondary use? 0:04:23.720 --> 0:04:25.359 So what's the test? 0:04:25.440 --> 0:04:29.120 Now, that's a great question. So keep in mind that 0:04:29.160 --> 0:04:32.440 we're talking about batcheatory language, the fair use Statute, which 0:04:32.520 --> 0:04:37.000 has a four factor test. The only part of that 0:04:37.160 --> 0:04:40.240 test that is at issue in this case is the 0:04:40.240 --> 0:04:43.040 first factor. Although the courts toss off these words that 0:04:43.200 --> 0:04:45.960 all factors have to be considered, no one factor is 0:04:45.960 --> 0:04:48.039 more important than the other, the reality is that the 0:04:48.040 --> 0:04:50.799 first factor is always the most important factor. The first 0:04:50.839 --> 0:04:53.920 factor says, you know, in considering whether there's a fair use, 0:04:54.000 --> 0:04:56.159 you have to consider, and I'm quoting here the purpose 0:04:56.279 --> 0:04:59.880 and character of the use, including whether such use is 0:05:00.040 --> 0:05:03.680 of a commercial nature or is for nonprofit educational purposes. 0:05:03.800 --> 0:05:07.080 And so the battleground has been on this purpose and 0:05:07.279 --> 0:05:10.559 character of the use. And I see this case really 0:05:10.640 --> 0:05:13.400 as not a radical shift, but as a clarification of 0:05:13.400 --> 0:05:17.120 what that purpose and character of the secondary use means. 0:05:17.560 --> 0:05:20.680 And just so to major starts a trope that will 0:05:20.720 --> 0:05:24.360 continue throughout the decision. She talks about the matter of degree. 0:05:24.520 --> 0:05:28.039 She says, specifically, the larger the difference, you know, the 0:05:28.040 --> 0:05:31.320 greater the degree, the more likely the first factor weighs 0:05:31.320 --> 0:05:34.760 in fair use. So the greater the change in purpose 0:05:34.920 --> 0:05:38.360 or character of use, the more likely it is going 0:05:38.440 --> 0:05:40.719 to be a fair use, and the smaller the difference 0:05:40.720 --> 0:05:43.640 in purpose or character, the less likely. And so what 0:05:43.680 --> 0:05:45.840 she has done, in my view, is set up a 0:05:46.000 --> 0:05:49.800 balancing test of sorts. First, you look at what is 0:05:49.839 --> 0:05:52.680 the difference in purpose, what is the difference in use? 0:05:52.800 --> 0:05:55.640 You consider how much of a difference that is from 0:05:55.640 --> 0:05:58.720 the original work, and then you have to do another thing. 0:05:58.800 --> 0:06:01.480 She says, if it's a commercial use, then you have 0:06:01.520 --> 0:06:04.520 to have even more significant of a difference than if 0:06:04.520 --> 0:06:08.160 it's a nonprofit educational used. To our criticism, something the 0:06:08.200 --> 0:06:10.960 other you don't have to have as great a difference 0:06:11.160 --> 0:06:14.240 in purpose or character of the secondary use. And so 0:06:14.279 --> 0:06:16.840 I think that's what the test on the first factor is. 0:06:17.080 --> 0:06:19.760 And again she says this, I'm not pausing out this 0:06:19.880 --> 0:06:24.839 transformative use concept, but and she says transformativeness is a 0:06:25.000 --> 0:06:27.520 matter of degree. She again keeps coming back to this 0:06:27.600 --> 0:06:30.600 notion that it's not all or nothing. A district court 0:06:30.720 --> 0:06:33.520 judge has to look at the degree to which the 0:06:33.760 --> 0:06:37.560 purported difference and whether that is significant to overcome what 0:06:37.640 --> 0:06:40.200 is a straightforward commercial usage. Was what was going on here. 0:06:40.720 --> 0:06:47.400 Justices Sotomayor and Kagan are both liberals, usually allies, but 0:06:47.720 --> 0:06:51.719 there was an unusually sharp tone in their opinions here. 0:06:52.279 --> 0:06:55.719 Justice Elena Kagan, joined by the Chief Justice, wrote the dissent. 0:06:56.320 --> 0:07:00.120 Justice Kagan wrote, the majority does not see it, and 0:07:00.160 --> 0:07:03.560 I mean that literally, And she gave this example. If 0:07:03.640 --> 0:07:06.880 a magazine editor publishing an article about Prince and an 0:07:06.880 --> 0:07:10.280 employee asks whether you want to use the Goldsmith photo 0:07:10.680 --> 0:07:13.920 or the Warhol portrait, and she says, quote, would you 0:07:14.000 --> 0:07:16.600 say that you don't really care that the employee is 0:07:16.640 --> 0:07:19.160 free to flip a coin? In the majority's view, you 0:07:19.240 --> 0:07:22.120 apparently would. What do you think of her analysis? 0:07:22.520 --> 0:07:27.360 Oh, I've always thought, as a practicing lawyer advising clients 0:07:27.720 --> 0:07:31.080 with serious and significant mondary issues here that it's a 0:07:31.200 --> 0:07:34.680 challenging role for us to decide what's fair use and 0:07:34.760 --> 0:07:37.400 what is not. It's just the nature of the concept 0:07:37.840 --> 0:07:42.520 has to be somewhat flexible, somewhat plastic to allow the 0:07:42.640 --> 0:07:45.600 cover odd situations that come up. And so yes, there 0:07:45.640 --> 0:07:50.360 are a handful of black letter cases where you can 0:07:50.440 --> 0:07:52.760 say one way or the other, you know that this 0:07:52.880 --> 0:07:54.960 is fair use is not fair use. But the vast 0:07:55.000 --> 0:07:57.920 majority fall in the middle ground. And it's a very 0:07:58.040 --> 0:08:02.160 nuanced analysis. So that's always been true. And again you 0:08:02.200 --> 0:08:06.080 have here Justice Kagan never practiced law in any real sense. 0:08:06.120 --> 0:08:08.840 She wes Solicitor General and she's only peering court as 0:08:08.840 --> 0:08:11.600 a practier six times, all of them in the Supring Court. 0:08:11.600 --> 0:08:14.360 I might add, for which you want, but prior to 0:08:14.440 --> 0:08:16.280 becoming a solicity to general, it never been at court room. 0:08:16.400 --> 0:08:19.160 It was an academic and I think that is something 0:08:19.240 --> 0:08:23.920 that's missing often from the court, this real world practice component. 0:08:24.000 --> 0:08:26.480 And this is hard. Ears you said it's unfair to 0:08:26.480 --> 0:08:28.720 say there's a flip of the coin. I mean, it's 0:08:28.760 --> 0:08:31.200 just not right. More to the point, I think her 0:08:31.320 --> 0:08:35.640 decision in many ways very intemperate and unfortunately draws them 0:08:35.640 --> 0:08:38.760 and in temperate responds backs from the majority decision. I mean, 0:08:39.000 --> 0:08:40.959 sort of unheard of, And I think you make a 0:08:41.040 --> 0:08:44.400 very good point, Jennie Bryant. They're usually allies and from 0:08:44.440 --> 0:08:46.640 the liberal wing of the court. You and I have 0:08:46.640 --> 0:08:50.280 discussed this in past copyright cases. Copyright doesn't seem to 0:08:50.280 --> 0:08:53.200 break down on some sort of partisan division lawns. Here 0:08:53.240 --> 0:08:57.080 you have the Chief Justice who's a moderate Republican appointee, 0:08:57.200 --> 0:09:00.199 and Justice Kagan perceived to be a liberal vote the 0:09:00.280 --> 0:09:03.839 other and just so to major writing majority supported by 0:09:04.559 --> 0:09:08.200 all of the other conservatives on the Court, including arguably 0:09:08.240 --> 0:09:11.960 the most liberal Judge Jackson. I mean, for years, copyright 0:09:12.000 --> 0:09:15.040 case or are dominated by Justice Ginsberg and Justice Bryer, 0:09:15.320 --> 0:09:18.280 who are opposite ends of the spectrum on copyright law. 0:09:18.520 --> 0:09:22.000 Justice Briar believing in a very robust fair use and 0:09:22.240 --> 0:09:26.400 Justice Ginsburg believing in very robust protection for copyright. Yeah, 0:09:26.760 --> 0:09:31.120 arguably they were kindred cousins on most other cases. So 0:09:31.440 --> 0:09:34.160 copyright really you can't analyze in sort of a liberal 0:09:34.280 --> 0:09:37.360 versus conservative way. But what is interesting here is you 0:09:37.400 --> 0:09:40.199 have two of the justices who arguably are a slightly 0:09:40.240 --> 0:09:44.679 different socioeconomic situation throughout their lives versus all the others 0:09:44.720 --> 0:09:47.840 who are different, and some of the tone of Justice 0:09:47.880 --> 0:09:51.240 Kaigan reflects that I think this knee jerk reaction that 0:09:51.320 --> 0:09:54.240 Chief Justice had, and then Justice Kagan reflects that we've 0:09:54.240 --> 0:09:57.520 got to protect artists, we've got to protect creativity without 0:09:57.559 --> 0:10:00.600 actually thinking about what's going on in in this case. 0:10:00.760 --> 0:10:03.680 You know, you saw this with Justice Ginsberg often and 0:10:03.880 --> 0:10:07.040 Justice Bryer, who were clearly too wealthiest of the justices 0:10:07.240 --> 0:10:09.840 went to the opera or patrons of the art, And 0:10:09.920 --> 0:10:11.760 here you have a distinct group of justices who did 0:10:11.800 --> 0:10:13.640 not grow up that way and did not live their 0:10:13.640 --> 0:10:16.320 lives that way and taking a different approach, which is, 0:10:16.520 --> 0:10:18.720 you know, you've got a photographer here trying to earn 0:10:18.720 --> 0:10:21.559 a living, and you're cheating her out of that. And 0:10:21.960 --> 0:10:24.360 there's even a line where she says, you could have 0:10:24.480 --> 0:10:28.040 taken a few dollars and sent it to Lynn Goldsmith's 0:10:28.320 --> 0:10:31.640 Planet photographer out of all the money you're making off 0:10:31.679 --> 0:10:35.959 of publishing these Warhol prints. And I thought that one 0:10:36.040 --> 0:10:39.000 was very revealing of sort of behind the scenes the 0:10:39.000 --> 0:10:41.559 way they were thinking of it. And I think that's 0:10:41.840 --> 0:10:45.959 really important subrosa narrative that's going on here. 0:10:46.400 --> 0:10:50.400 Well, do you agree with Justice Kagan and the Chief 0:10:50.559 --> 0:10:54.800 that this decision will stifle creativity of every sort? 0:10:55.240 --> 0:10:58.480 Now, absolutely not, it won't. I think this is a 0:10:58.600 --> 0:11:02.360 decision that's well ground it in fair use principles, exactly 0:11:02.400 --> 0:11:04.640 the opposite of what Justice Kagan says. I sort of 0:11:04.840 --> 0:11:06.679 expected it to come out this way. I didn't think 0:11:06.720 --> 0:11:08.800 there would be as strong as support for it. But 0:11:09.240 --> 0:11:14.040 we have seen this fair use first factor analysis run 0:11:14.040 --> 0:11:17.440 amock the Carew case in the Second Circuit where a 0:11:17.480 --> 0:11:21.960 photographer took some very creative photographs of Rastafarians in Jamaica 0:11:22.400 --> 0:11:24.680 and so called artists done up putting air quotes around. 0:11:24.760 --> 0:11:28.880 Artists came along, doodled on them, You drew sunglasses on 0:11:28.880 --> 0:11:31.680 one hand and drew guitar and the other and sold them. 0:11:31.760 --> 0:11:34.360 And the Second Circuits that those doodles were transformative and 0:11:34.760 --> 0:11:38.720 that was an abomination of a fairy And that case 0:11:38.800 --> 0:11:41.000 is dead. Now you want to know what the Warhol 0:11:41.080 --> 0:11:43.560 case does. That case is dead. That whole type of 0:11:43.600 --> 0:11:47.200 approach is dead. What we've done is get back to 0:11:47.800 --> 0:11:51.440 the textual analysis of what the words say which is 0:11:51.520 --> 0:11:53.679 very important and most important to what we haven't talked 0:11:53.720 --> 0:11:59.680 about yet is this reasserted objective test with respect to 0:12:00.320 --> 0:12:04.080 purpose of use, which just rings so clearly here. It 0:12:04.200 --> 0:12:05.960 is the part that I think district quot judges have 0:12:06.000 --> 0:12:08.800 to pay most attention to. What Justice Soda Mayor says 0:12:08.960 --> 0:12:11.480 is quote here, a court should not attempt to evaluate 0:12:11.480 --> 0:12:14.199 the artistic significance of a particular work, which is exactly 0:12:14.240 --> 0:12:16.280 what Justice Kane does. She goes on and on and 0:12:16.320 --> 0:12:18.960 on about how great Andy Warhol is, and I would 0:12:19.000 --> 0:12:21.439 have loved to see the first draft majority opinion because 0:12:21.679 --> 0:12:25.000 Justice Soda Myyer, I'm convinced in a subseqan draft goes 0:12:25.040 --> 0:12:27.360 in and rewrites the beginning of her decision to talk 0:12:27.400 --> 0:12:30.320 about how great Lynn Goldsmith is photographer, and from a 0:12:30.320 --> 0:12:34.440 feminist approach, there were no women's photographers doing rock and 0:12:34.520 --> 0:12:37.360 roll back in the sixties and seventies. She created a 0:12:37.400 --> 0:12:40.440 whole new genre of rock and roll photography and deserves 0:12:40.480 --> 0:12:43.440 credit for that. And it was an interesting, again dueling 0:12:43.480 --> 0:12:45.800 approach to this case. But to get back to the 0:12:45.840 --> 0:12:49.000 subjective test, Justice Soda Myer goes on to say, nor 0:12:49.080 --> 0:12:53.120 does the subjective intent of the user the artist determine 0:12:53.120 --> 0:12:55.320 the purpose of the use. And this is the critical 0:12:55.360 --> 0:12:57.800 sentence that will get quoted over and over again in 0:12:57.840 --> 0:13:00.439 district of poor opinions whether the purpose and character of 0:13:00.440 --> 0:13:03.439 a use ways in favor of fair uses, an objective 0:13:03.840 --> 0:13:07.720 inquiry into what use was made, and what she's saying 0:13:07.720 --> 0:13:09.760 there is I don't care what the artist says. I 0:13:09.800 --> 0:13:11.920 don't care that the artist says that it is transformed. 0:13:12.000 --> 0:13:14.640 I don't care what the judge thinks. Judges shouldn't be 0:13:14.720 --> 0:13:16.960 art critics in the first place. That goes back to 0:13:17.000 --> 0:13:19.880 the nineteen twenties that doctorate and what we had seen 0:13:19.920 --> 0:13:23.160 in the Crew case was reflective of This is artists 0:13:23.160 --> 0:13:27.200 coming in after the fact and concocting some story as 0:13:27.240 --> 0:13:29.520 to how they were trying to do something different and 0:13:29.679 --> 0:13:32.800 therefore was a transformative use. And what just as Sodoma 0:13:32.880 --> 0:13:35.000 are in the overwhelming majority say, here's no, that's not 0:13:35.040 --> 0:13:37.880 the way. Let's look at this from a reasonable person 0:13:37.920 --> 0:13:41.439 perspective and what is the objective purpose here? And in 0:13:41.480 --> 0:13:45.160 this case they said, the objective purpose of Lynn Goldsmith's 0:13:45.200 --> 0:13:50.240 photograph was to illustrate a magazine article about Prince's life. 0:13:50.440 --> 0:13:53.600 What was the objective purpose of the Warhol print. It 0:13:53.720 --> 0:13:58.480 was to illustrate a magazine article about Prince's life. Therefore 0:13:58.520 --> 0:14:01.480 the purpose was the same, and therefore you lose on 0:14:01.600 --> 0:14:05.480 factor one. And if there's anything that makes fair use 0:14:05.520 --> 0:14:08.960 analysis simpler here in this decision, that's it, because now 0:14:09.000 --> 0:14:12.600 we know exactly how to perform the analysis of what 0:14:12.760 --> 0:14:15.400 is the secondary purpose? What is the secondary use? What's 0:14:15.440 --> 0:14:17.480 the purpose of the secondary use? We now know how 0:14:17.520 --> 0:14:20.520 to do that. And once we have that, the test 0:14:20.640 --> 0:14:23.680 really kicks in just the same as it always has 0:14:23.720 --> 0:14:27.000 in past cases. Is that the same purpose and character 0:14:27.040 --> 0:14:29.720 of use as the original And if so, you lose 0:14:30.120 --> 0:14:33.640 no fair use. So I think that's really really important here. 0:14:34.520 --> 0:14:38.360 So in a concurring opinion by Justice Neil Gorsich joined 0:14:38.360 --> 0:14:43.120 by Justice Katanji Brown Jackson, again an unusual duo left 0:14:43.200 --> 0:14:46.560 open the possibility that the princes images could claim fair 0:14:46.680 --> 0:14:49.120 use protection in other contexts. 0:14:49.480 --> 0:14:51.960 It's absolutely true. I mean, what happened here, end of 0:14:52.000 --> 0:14:54.320 the day. You know, the client always does where do 0:14:54.360 --> 0:14:57.600 I stand? And the answer for the Warhol Foundation is 0:14:57.600 --> 0:15:01.680 you lost this case on appeal. They waived any challenge 0:15:01.720 --> 0:15:04.520 to factor two, three and four, which they lost below 0:15:04.720 --> 0:15:07.760 and had bet the farm on factor one, they've now 0:15:07.800 --> 0:15:10.680 lost factor one. And oh, by the way, they early 0:15:10.720 --> 0:15:15.160 on conceded substantial similarity. So in the majority opinion says, 0:15:15.200 --> 0:15:17.680 we affirmed the decision by the second Circuit, the Court 0:15:17.680 --> 0:15:20.720 of Appeals. Here the way the second Circuit it approached 0:15:20.720 --> 0:15:23.760 this was we're gring a grands summary judgment to Lynn Goldsmith. 0:15:23.760 --> 0:15:25.600 The plane of it still has to go back to 0:15:25.640 --> 0:15:28.920 the district court for determination of damages and attorney's fees 0:15:28.920 --> 0:15:32.160 and the like, but the Andy Warhol Foundation has now lost. 0:15:32.480 --> 0:15:36.960 What the concurring decision by Justice Gorswitz says, is this 0:15:37.400 --> 0:15:41.440 all the hyperbole in the descent by Justice Kagan can 0:15:41.480 --> 0:15:44.720 be ignored. At one point in her descent, Justice Kagan, 0:15:44.840 --> 0:15:48.720 and she puts in illustrations of various artists through history 0:15:49.080 --> 0:15:53.240 painting reclining nude women. They're all in the public domain, 0:15:53.320 --> 0:15:55.560 so it's not a copyright issue. And she says, so 0:15:55.960 --> 0:15:59.240 going forward, is no one allowed to paint a woman 0:15:59.280 --> 0:16:02.880 in a reclining position because of this decision? And that's 0:16:02.920 --> 0:16:06.840 pure hyperbole. In a justice corsition, Justice Jackson call her 0:16:06.840 --> 0:16:09.200 out and they say a quote worried about the fate 0:16:09.240 --> 0:16:13.200 of artists seeking to portray reclining nudes or papal authorities 0:16:13.480 --> 0:16:17.080 or authors hoping to build on classic literary themes. Worry not, 0:16:17.520 --> 0:16:19.600 the case does not call us on us to strike 0:16:19.640 --> 0:16:22.920 a balance between rewarding creators and enabling others to build 0:16:22.920 --> 0:16:26.840 on their work. And again, this is just a reiteration 0:16:27.320 --> 0:16:32.240 that the decision is in line with pre existing fair 0:16:32.360 --> 0:16:37.520 use analysis. It simply clarifies how we make the determination 0:16:37.640 --> 0:16:39.640 as to what the purpose and character of the secondary 0:16:39.720 --> 0:16:45.720 use is and make it very hard for an artist 0:16:45.800 --> 0:16:49.840 whoever is creating the secondary work to make up some 0:16:50.000 --> 0:16:53.000 theory that they claim that is it transformed its use. Instead, 0:16:53.000 --> 0:16:56.480 we look at taking an objective approach. And therefore that's 0:16:56.480 --> 0:16:59.280 why I think this is not a radical change, but 0:16:59.400 --> 0:17:02.240 it is a very significant clarification, and I would go 0:17:02.320 --> 0:17:04.520 so far as say this is arguably the most important 0:17:04.520 --> 0:17:07.399 copyright case of the twenty first century. Keeping mind that 0:17:07.520 --> 0:17:10.000 Supreme Court has not looked at fair use now since 0:17:10.080 --> 0:17:12.200 nineteen ninety four, almost going on thirty years. 0:17:12.440 --> 0:17:15.000 What happens next in this case, So. 0:17:15.000 --> 0:17:17.720 We'll go back to the district court and the district 0:17:17.760 --> 0:17:21.280 court will have to determine how much Lynn Goldsmith should 0:17:21.280 --> 0:17:24.560 get by way of the infringement and whether or not 0:17:24.640 --> 0:17:27.639 she should get attorney's fees, which could be very significant. 0:17:28.320 --> 0:17:32.560 My guess is that because this is a really important 0:17:32.600 --> 0:17:36.960 case and there was a lot of confusion as to 0:17:37.000 --> 0:17:39.480 what the law is, the district court was saying, now 0:17:39.480 --> 0:17:42.919 you don't get attorney's fees. This wasn't that sort of case. 0:17:43.600 --> 0:17:46.000 There were real doubts. Now we've got those doubts clarified, 0:17:46.000 --> 0:17:49.080 and so that the Andy Warhol Foundation actually did all 0:17:49.119 --> 0:17:51.440 of us a favor by forcing us to litigate this through. 0:17:51.640 --> 0:17:54.719 And I'll also say that based on the evidence I 0:17:54.800 --> 0:17:57.560 saw in the record on damages, I don't think she's 0:17:57.600 --> 0:17:59.040 going to get a lot of money either. I mean 0:17:59.040 --> 0:18:03.040 in the neighborhood between one and ten thousand dollars. Really, yeah, 0:18:03.080 --> 0:18:05.600 because that's what these licenses were going for. There's a 0:18:05.640 --> 0:18:08.360 lot of evidence of record here. I mean, that's one 0:18:08.359 --> 0:18:11.320 of the points Justice Soda Mayor was making is why 0:18:11.359 --> 0:18:14.600 didn't you just toss her a few bucks to get 0:18:14.600 --> 0:18:16.879 the rights to this when you're making all this money 0:18:16.880 --> 0:18:18.840 on it. It's a fair point. And you know what, 0:18:19.119 --> 0:18:22.639 you talk about creativity. Justice Kagan talks about creativity and 0:18:22.680 --> 0:18:25.479 the damage to creativity The real damage has been this 0:18:25.600 --> 0:18:30.199 overbroad interpretation of fair use, which is preventing photographers and 0:18:30.400 --> 0:18:35.280 other original artists from getting their fair due and having 0:18:35.320 --> 0:18:39.199 that money siphoned off by secondary uses. This being a 0:18:39.240 --> 0:18:42.800 classic example of this. And I think this was necessary, 0:18:42.840 --> 0:18:45.040 and I think remedies the flaw of the types of 0:18:45.080 --> 0:18:47.080 cases like crew that had gone overboard. 0:18:47.359 --> 0:18:49.560 We'll see how the district courts do with the test 0:18:49.640 --> 0:18:53.400 Thanks so much, Terry. That's Terrence Ross of Catain, Mutchen Rosenman. 0:18:54.880 --> 0:18:57.719 Thank tot ver remain a place for free expression and 0:18:57.760 --> 0:19:00.680 we're not be manipulated by government. 0:19:01.000 --> 0:19:04.359 And TikTok backed up the testimony of its CEO So 0:19:04.640 --> 0:19:08.760 Shoe by suing Montana, the first state to ban the 0:19:08.840 --> 0:19:12.639 popular app. The company says it doesn't share US user 0:19:12.720 --> 0:19:16.680 data with the Chinese government and has taken substantial steps 0:19:16.720 --> 0:19:20.120 to protect the privacy and security of TikTok users. 0:19:20.600 --> 0:19:22.399 That's what we've been doing for the last two years, 0:19:22.840 --> 0:19:27.000 building what amounts to a firewall this use of protected 0:19:27.160 --> 0:19:30.040 US user data from unauthorized foreign access. 0:19:30.600 --> 0:19:34.800 TikTok has been here before, and one federal courts bloc. 0:19:34.920 --> 0:19:38.639 Former President Donald Trump's executive order banning TikTok and the 0:19:38.800 --> 0:19:42.399 Chinese app we chat back in twenty twenty. Joining me 0:19:42.480 --> 0:19:45.560 is Jorge Marquez of the Warren Law Group. So one 0:19:45.600 --> 0:19:48.840 of the arguments that TikTok is making is that the 0:19:48.920 --> 0:19:51.080 ban violates free speech rights. 0:19:51.560 --> 0:19:55.919 So basically, the argument goes that the ban goes to 0:19:56.320 --> 0:20:00.040 not just the users, because you're eliminating TikTok at a 0:20:00.320 --> 0:20:03.000 medium for the users to be able to post and 0:20:03.480 --> 0:20:06.920 express themselves pursuant to the First Amendment, but also TikTok. 0:20:07.000 --> 0:20:09.719 TikTok even makes the argument that they themselves have their 0:20:09.720 --> 0:20:13.840 own account, So you're removing TikTok as a forum, but 0:20:13.920 --> 0:20:18.840 you're also removing TikTok as a content provider. And because 0:20:18.880 --> 0:20:22.119 you're actually focusing on the speaker, and because you're focusing 0:20:22.480 --> 0:20:25.400 on the content, you get to these questions of is 0:20:25.600 --> 0:20:27.640 strict scrutiny going to apply. 0:20:28.080 --> 0:20:31.879 Strict scrutiny being the toughest form of judicial review, and 0:20:31.960 --> 0:20:33.760 does it sound like a prior restraint. 0:20:34.080 --> 0:20:37.560 Absolutely, there's definitely prior restraint with the way in which 0:20:37.640 --> 0:20:40.679 the ban is taking effect. So the ban is trying 0:20:40.720 --> 0:20:43.800 to definitely make sure that none of this content can 0:20:43.840 --> 0:20:47.480 even be provided and you have a chilling effect from 0:20:47.720 --> 0:20:48.720 the Montana law. 0:20:49.119 --> 0:20:53.440 Another argument is that the ban is preempted by federal law. 0:20:53.720 --> 0:20:56.760 Now, in terms of the preemption, the federal government has 0:20:56.920 --> 0:21:00.000 the Department of Homeland Security and it has its own 0:21:00.240 --> 0:21:04.800 cyber agencies. Right now, I think that Montana does not 0:21:04.960 --> 0:21:08.560 have the winning side of that question. However, is they 0:21:08.560 --> 0:21:13.840 are able to articulate a much more specific argument to 0:21:13.960 --> 0:21:17.119 their own state needs. They may be able to craft 0:21:17.119 --> 0:21:19.560 an argument as to how they may be able to 0:21:19.600 --> 0:21:22.919 be involved in that. Now, that still segues into the 0:21:23.000 --> 0:21:26.840 commerce clause issue and those state laws that are directed 0:21:26.880 --> 0:21:31.480 to legitimate local concerns such as the cyber security of 0:21:31.520 --> 0:21:35.800 your residence, but have incidental effects on interstate commerce. You're 0:21:35.840 --> 0:21:39.560 trying to apply a local solution. But at the end 0:21:39.600 --> 0:21:43.000 of the day, TikTok has a national exposure. It is 0:21:43.119 --> 0:21:46.399 broad based. If someone is in Montana, they can cross 0:21:46.440 --> 0:21:49.520 state lines and what happens with the APPS usage, so 0:21:49.720 --> 0:21:52.240 both of those issues are there. I do think that 0:21:52.320 --> 0:21:55.720 the preemption argument TikTok makes us very valid points. 0:21:56.000 --> 0:22:00.840 There's a really interesting argument around the prohibition of a 0:22:00.880 --> 0:22:03.879 bill of attainder, not something that often comes up in 0:22:04.080 --> 0:22:08.840 ordinary conversation. But where a law punishes a party without 0:22:08.880 --> 0:22:12.800 a trial. So here there's been no proof, no proceeding 0:22:13.000 --> 0:22:18.520 showing that TikTok violates the privacy of Montana residents. 0:22:19.320 --> 0:22:23.280 So what you're raising is a very valid point. So 0:22:23.400 --> 0:22:26.120 number one, this bill of attainer, it is not that common. 0:22:26.560 --> 0:22:29.040 I think there's a reason why TikTok put that. At 0:22:29.080 --> 0:22:32.440 the fourth point, TikTok makes the point of and even 0:22:32.560 --> 0:22:35.440 cites to language from the governor about how there was 0:22:35.480 --> 0:22:38.960 an initial interest of including other social media companies and 0:22:39.400 --> 0:22:42.040 however they got singled out and a lot of the 0:22:42.160 --> 0:22:45.639 concerns that the law brings. So for example, the law 0:22:46.040 --> 0:22:49.440